An Introduction to the Philosophy of LawPound, Roscoe
Philosophy
An Introduction to the Philosophy of Law
Pound, Roscoe
Law -- Philosophy
possession is a conception of fact and law, existing as a pure
relation of fact, independent of legal origin, but protected and
maintained by law without regard to interference with personality.
Ownership is a purely legal conception having its origin in and
depending on the law.
In general the historical development of the law of property follows
the line thus indicated by analysis. In the most primitive social
control only natural possession is recognized and interference with
natural possession is not distinguished from interference with the
person or injury to the honor of the one whose physical contact with
the physical object is meddled with. In the earlier legal social
control the all-important thing is seisin, or possession. This is a
juristic possession, a conception both of fact and of law. Such
institutions as tortious conveyance by the person seised in the
common law are numerous in an early stage of legal development. They
show that primarily the law protected the relation to an object of one
who had possession of it. Indeed the idea of _dominium_, or ownership
as we now understand it, was first worked out thoroughly in Roman law,
and other systems got their idea of it, as distinguished from seisin,
from the Roman books.
Recognition of individual interests of substance, or in other words
individual property, has developed out of recognition of group
interests, just as recognition of individual interests of personality
has evolved gradually from what in the first instance was a
recognition of group interests. The statement which used to be found
in the books that all property originally was owned in common means
nothing more than this: When interests of substance are first secured
they are interests of groups of kindred because in tribally organized
society groups of kindred are the legal units. Social control secures
these groups in the occupation of things which they have reduced to
their possession. In this sense the first property is group property
rather than individual property. Yet it must be noted that wherever we
find a securing of group interests, the group in occupation is secured
against interference of other groups with that occupation. Two ideas
gradually operated to break up these group interests and bring about
recognition of individual interests. One of these is the partition of
households. The other is the idea of what in the Hindu law is called
self-acquired property.
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